Cannon v. University of Chicago, s. 76-1238

• Citation: 559 F.2d 1063
• Decision Date: 09 August 1977
• Docket Number: Nos. 76-1238,76-1239,s. 76-1238
• Parties: 12 Empl. Prac. Dec. P 11,175, 14 Empl. Prac. Dec. P 7770 Geraldine G. CANNON, Plaintiff-Appellant, v. The UNIVERSITY OF CHICAGO et al., Defendants-Appellees. Geraldine G. CANNON, Plaintiff-Appellant, v. NORTHWESTERN UNIVERSITY et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1063

559 F.2d 1063

12 Empl. Prac. Dec. P 11,175, 14 Empl. Prac.

Dec. P 7770

Geraldine G. CANNON, Plaintiff-Appellant, v. The UNIVERSITY OF CHICAGO et al., Defendants-Appellees.

Geraldine G. CANNON, Plaintiff-Appellant, v. NORTHWESTERN UNIVERSITY et al., Defendants-Appellees.

Nos. 76-1238, 76-1239.

United States Court of Appeals Seventh Circuit.

Argued June 4, 1976.

Decided Aug. 27, 1976.

On Rehearing Aug. 9, 1977.

John M. Cannon, Chicago, Ill., for plaintiff-appellant.

Samuel K. Skinner, U. S. Atty., Frederick H. Branding, Asst. U. S. Atty., Marvin E. Gavin, Regional Atty., Dept. of Health, Education and Welfare, and Rochell K. Stallworth, Gen. Atty., Dept. of Health, Education and Welfare, Thomas H. Morsch, Stuart Bernstein, Chicago, Ill., for defendants-appellees.

Before SPRECHER and BAUER, Circuit Judges, and GRANT, Senior District Judge. ^*

BAUER, Circuit Judge.

Plaintiff Geraldine Cannon brought this civil rights suit against defendants, the University of Chicago, Northwestern University, and various individual officers of the schools, after she was rejected as an applicant for admission to the medical schools. She alleges that she was denied admission because of her age and sex. The trial court dismissed the suit for failure to state a claim upon which relief could be granted. We affirm.

Plaintiff at the time of application was 39 years old with a bachelor's degree from Trinity College of Deerfield, Illinois. Her medical college admission test scores placed her in the lower half of the applicant group. Her undergraduate grade point average in basic science was 3.17 on a 4.00 scale.

Although the plaintiff's academic credentials were good, statistics for the 1975 entering class at the University of Chicago Pritzker School of Medicine indicate the plaintiff faced overwhelming competition; 5,427 persons applied for the 104 positions available at the medical school. In sharp contrast to plaintiff's grades, the overall average of the entering class was 3.70. The Dean of the medical school stated in an affidavit that there were at least 2,000 unsuccessful applicants who had better academic qualifications than the plaintiff.

A review of the persons who applied with plaintiff indicates that 1,172 were women and 4,154 were men. Of the 104 admitted, 19 were female and 85 were male. Over the past four years, 18.1% of the applicants to the University of Chicago Medical School has been female; over the same period, 18.3% of the entering class has been female. ¹

Despite the difficult factual setting ² in which plaintiff found herself she brought suit alleging age and sex discrimination. The complaint alleged that her rights were violated under the Civil Rights Act of 1871, 42 U.S.C. § 1983, Title IX of the Education Amendments to the Civil Rights Act of 1964, which prohibits sex discrimination, the Age Discrimination in Employment Act, 29 U.S.C. § 621, and the Public Health Services Act, § 799A, 42 U.S.C. § 295h-9. Plaintiff also filed administrative complaints with the Department of Health, Education and Welfare ("HEW"). Later the complaint was amended naming HEW and its regional director as defendants in the suit. ³ In affirming the dismissal of the complaint we will consider each of plaintiff's jurisdictional claims individually.

I. INSUFFICIENT STATE ACTION EXISTS FOR FEDERAL JURISDICTION UNDER 42 U.S.C. S 1983.

Plaintiff's chief allegation is that the defendants' rejection of her application for admission to medical school deprived her of equal protection of the laws in violation of 42 U.S.C. § 1983. ⁴ The district court granted defendants' motion to dismiss for lack of subject matter jurisdiction over this claim on the ground that plaintiff had failed to meet the "state action" requirement of § 1983. In so ruling, Judge Hoffman specifically applied the standards for the "state action" requirement which have been articulated in recent years by the United States Supreme Court and by this Court.

In Moose Lodge No. 107 v. Irvis, ⁵ 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), a black guest was refused service in a private club's dining room because of his race. Since the club was operating pursuant to a liquor license issued by the Pennsylvania Liquor Control Board and was subject to detailed regulations by the Pennsylvania Board, the plaintiff argued that sufficient "state action" was present to establish a violation of his Fourteenth Amendment rights.

The Court rejected the "state action" claim, observing:

"The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from state conduct set forth in The Civil Rights Cases, supra, and adhered to in subsequent decisions. Our holdings indicate that where the impetus for the discrimination is private, the State must have 'significantly involved itself with invidious discriminations', Reitman v. Mulkey, 387 U.S. 369, 380 (87 S.Ct. 1627, 1634, 18 L.Ed.2d 830) (1967), in order for the discriminatory action to fall within the ambit of the constitutional prohibition." 407 U.S. at 173, 92 S.Ct. at 1971.

The requirement of state action was explained even more fully by the Supreme Court in Jackson v. Metropolitan Edison Comm., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Suit was brought under § 1983 against a private utility company seeking an injunction and damages for the termination of plaintiff's electrical services without notice, a hearing, or an opportunity to pay any amounts due. The claim of state action was based upon the following allegations: (1) the State had conferred monopoly status upon the utility company; (2) the utility performed a public service required to be supplied on a continuous basis under the law, hence performing a "public function"; and (3) the State "specifically authorized and approved" the termination practice. In holding that this was insufficient for a finding of state action under § 1983, the Supreme Court outlined the relevant test:

"The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment. * * * Nor does the fact that the regulation is extensive and detailed, as in the case of most public utilities, do so. Public Utilities Comm'n v. Pollak, 343 U.S. 451, 462 (72 S.Ct. 813, 820, 96 L.Ed. 1068) (1952). It may well be that acts of a heavily regulated utility with at least something of a governmentally protected monopoly will more readily be found to be 'state' acts than will the acts of an entity lacking these characteristics. But the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Moose Lodge No. 107, supra, at 176, (92 S.Ct. at 1973)." 419 U.S. at 350-51, 95 S.Ct. at 453.

The Supreme Court has thus made clear that neither general government involvement nor even extensive detailed state regulation is sufficient for a finding of state action. Rather, the state must affirmatively support and be directly involved in the specific conduct which is being challenged. ⁶

Plaintiff in this case makes an allegation that because the medical school receives money from the State its admission decisions are made differently than school administrators would otherwise decide on the basis of academic policy. We see nothing in the record to support this conclusory allegation. ⁷ Plaintiff argues that the giving of financial assistance by the State is tantamount to direct involvement of the State. See Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975); Grafton v. Brooklyn Law School, 478 F.2d 1137, 1142 (2d Cir. 1973); Braden v. University of Pittsburgh, 477 F.2d 1, 6 (3d Cir. 1973); Brown v. Strickler, 422 F.2d 1000, 1001 (6th Cir. 1970); Rackin v. University of Pennsylvania, 386 F.Supp. 992, 1001 (E.D.Pa. 1974); Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473, 479 (E.D.Pa. 1974). We agree that in some situations state financial assistance can amount to state action. But in this case we do not believe that the character and amount of assistance mandates a finding of state action. As Justice Stevens (then Circuit Judge) stated in Cohen v. I. I. T., 524 F.2d 818, 825 (7th Cir. 1975):

"Two different conclusions may be drawn from the allegations relating to the State's support of I.I.T. First, it is plain that the school is not so heavily dependent on the State as to be considered the equivalent of a public university for all purposes and in all its activities. It would dramatically enlarge the state action concept to conclude that these facts are sufficient to require a complete surrender of a university's private character. . . ."

A reading of the cases indicates that the concept of state action depends not only upon the amount of state financial assistance but also upon the type of injury alleged. In this case, where there appears to be no state connection to the injury alleged, where there is no indication that the State exercises any control of the medical schools' admissions policies, it would be improper to divest the medical schools of their private character.

This Court has followed the approach outlined by the Supreme Court in requiring a "nexus" between the State and the challenged conduct in several recent decisions. For example, in Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973), a doctor and a pregnant woman seeking to use a hospital's facilities for the purpose of...